Not Such a "Major Victory," After All

Here's one for the record books:

The Justice Department has asked a judge to throw out the convictions of a suspected terror cell in Detroit because of prosecutorial misconduct, reversing course in a case the Bush administration once hailed as a major victory in the war on terrorism, legal sources said Tuesday. The department told U.S. District Judge Gerald Rosen that it supports the Detroit defendants’ request for a new trial and would no longer pursue charges of material support of terrorism. That means the defendants at most would only face fraud charges at a new trial, the legal sources said.

The department’s decision came after a months-long independent investigation uncovered several pieces of evidence that prosecutors failed to turn over to defense lawyers before the trial last year and exposed deep disputes within the government over the course of the case and the quality of the prosecution’s evidence.

How distressing is the case? Let us count the ways. First, the actions of the prosecutors are shameful -- a violation not only of the defendants' constitutional rights, but also of the prosecutors' professional ethics.

Second, it appears that the Justice Department only investigated the case because one of the AUSA's involved in it, Richard Convertino, filed a whistleblower suit against the Department.

Third, it seems that the Justice Department only made its investigation public because the AP obtained a number of its internal memos regarding the case.

Fourth, what was Convertino thinking? He formally accuses the Justice Department of "thwarting his efforts to introduce some evidence against the accused terror cell at trial" -- and then it turns out that the evidence he did introduce was fundamentally flawed?

Fifth, why has the judge imposed a gag order in the case? Isn't the public entitled to know what really happened?

Sixth, why doesn't anyone ever listen to the defense attorneys? Yes, they are clearly biased -- and yes, I was one. But I don't know too many defense attorneys who simply invent claims that the prosecution is hiding evidence. Have we already forgotten what happened with the FBI in the McVeigh case?

If this is the quality of terrorism prosecutions in civilian courts, I shudder to think what is taking place in the military tribunals. That's reason to be distressed number seven: if this had been a military prosecution, chances are neither we nor the defendants would have ever found out that the convictions were a sham.

Comments

[Tung Yin]

Second, it appears that the Justice Department only investigated the case because one of the AUSA's involved in it, Richard Convertino, filed a whistleblower suit against the Department.

Is this right? I couldn't see the reference in the story to the motivation of the investigation. In fact, I got the impression that Convertino filed his whistleblower suit in response to the investigation. (I could well be wrong, though.)

Not sure if this helps...but Convertino filed his lawsuit on Feb. 14, 2004.

http://news.findlaw.com/hdocs/docs/doj/convertino21304cmp.pdf

[Mithras]

Sixth, why doesn't anyone ever listen to the defense attorneys? ... I don't know too many defense attorneys who simply invent claims that the prosecution is hiding evidence.

Because all defendants are guilty unless proved wealthy.

I don't know what political environment you practice in, but around my part of the world, judges (who are elected) listen to defense attorneys at their peril. And other politicians run against what defense attorneys do for a living.